EXHIBIT 10.30


EXECUTION COPY


ASSET TRANSFER AGREEMENT


          This
Asset Transfer Agreement (this “Agreement”) dated as of June 17, 2009, is entered into
by and between Zygo Corporation, a Delaware corporation (“Zygo”), and Nanometrics Incorporated, a Delaware
corporation (“Nano”).


RECITALS


          A.
Zygo has developed and is the owner of certain technology related to
interferometers (the “Automated Interferometers”), including the “heads,” the
control, monitoring and analysis software, and electronic control systems, as
well as the automation of the systems that use these technologies.


          B.
Zygo seeks to establish a relationship with Nano, and Nano intends to establish
a relationship with Zygo, pursuant to which Nano becomes the exclusive provider
of the product referred to by Zygo as the “Unifire” and other Approved Systems (as defined below)
in the Approved Markets (as defined below) that incorporate Heads (as defined
below), subject to the terms and conditions hereof, and in that certain Supply
Agreement, dated as of the Closing Date, by and between Zygo and Nano, attached
hereto as Exhibit D (the “Supply Agreement”).


AGREEMENT


          In
consideration of the foregoing and the respective representations, warranties,
covenants and agreements contained in this Agreement and the Supply Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
each of the parties hereby acknowledges, and intending to be legally bound
hereby, the parties agree as follows:


ARTICLE I


PURCHASE OF ASSETS AND ASSUMPTION OF
LIABILITIES


          1.1
Transfer of Assets. Upon and subject to the terms and conditions of this
Agreement, Zygo shall transfer, convey, assign and deliver to Nano at the
Closing, for the consideration specified in Section 1.3 below, (a) all right,
title and interest in, to and under the Acquired Assets (which are listed on Schedule
A-1 hereto), and (b) subject to Section 4.6 hereof, all its
rights and obligations under the Assigned Contracts (which are listed on Schedule
A-2 hereto).


          1.2
Assumption of Liabilities. Upon and subject to the terms and conditions
of this Agreement, Nano shall assume as of the Closing and become responsible
for the Assumed Liabilities (which are listed on Schedule B
hereto). 





          1.3
Consideration. The consideration for the transfer of assets is the execution of the
Supply Agreement and this Agreement, and the related covenants of Nano
hereunder and thereunder. 


          1.4
The Closing.


                    
(a) The Closing shall take place at the offices of Fulbright &
Jaworski L.L.P. in New York, New York, commencing at 1:00 p.m. local time
on the Closing Date. All transactions at the Closing shall be deemed to take
place simultaneously, and no transaction shall be deemed to have been completed
and no documents or certificates shall be deemed to have been delivered until
all other transactions are completed and all other documents and certificates
are delivered. 


                    (b)
At the Closing:


                              (i)
Zygo shall execute and deliver to Nano a bill of sale in the form attached
hereto as Exhibit A (the “Bill of Sale”), and such other instruments of conveyance
as Nano may reasonably request in order to (A) effect the sale, transfer,
conveyance and assignment to Nano of valid ownership of the Acquired Assets,
and (B) subject to Section 4.6 hereof, assign to Nano all its rights and
obligations under the Assigned Contracts;


                              (ii)
Zygo shall deliver to Nano, or otherwise put Nano in possession and control of,
all of the Acquired Assets of a tangible nature;


                              
(iii) Nano and Zygo shall execute and deliver to each other a cross-receipt
evidencing the transactions referred to above; 


                              
(iv) Nano shall execute an instrument of assumption in substantially the form
attached hereto as Exhibit B (the “Assumption Agreement”)
to effect the assumption of the Assumed Liabilities;


                              
(v) Nano and Zygo shall execute and deliver to each other the Supply Agreement;
and


                              
(vi) Nano and Zygo shall execute and deliver to each other the Sublease Agreement.


                    (c)
As soon as practicable after the Closing, but in any event prior to the
shipment by Zygo to Nano of the Purchased Inventory or the Demo Equipment, Nano
shall execute and deliver to Zygo a security agreement granting Zygo a first
perfected security interest in the Purchased Inventory and Demo Equipment (as
later defined), and a corresponding UCC-1 financing statement, both in a form
reasonably acceptable to Zygo, to ensure Zygo’s receipt of the Purchased
Inventory Purchase Price and Demo Equipment Purchase Price or the return of
such transferred assets.


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          1.5
Sublease of Hillsboro Facility. 


          (a)
At Closing, Nano and Zygo shall enter into a sublease agreement (the “Sublease Agreement”)
pursuant to which Nano will sublease from Zygo, and Zygo will sublease to Nano,
Zygo’s facility located at 2925 N.W. Aloclek Drive, Suite # 100
Hillsboro, Oregon (the “Oregon Facility”), consisting of 6,410 square feet of
space, through December 31, 2012, for monthly rent in an amount equal to
the current base rent and any other charges otherwise payable by Zygo under its
existing lease of the Oregon Facility.


          (b)
As of the Closing, Nano and Zygo agree as follows


                              (i)
Zygo hereby leases to Nano and Nano hereby leases from Zygo, for the monthly
rent equal to the
amortization of the fixed assets described in Section 2.15 of Exhibit C
over the life of the Sublease Agreement based on an interest rate of zero
percent, the Personal Property (as hereinafter defined) on the terms and
conditions of this Section 1.5(b). The term “Personal Property” means certain
improvements, furniture, phone system and fixed assets described in Section 2.7
of Exhibit
C. This lease of Personal Property shall expire and terminate at
such time the Sublease Agreement shall expire or earlier terminate. This lease
of Personal Property and any conveyance of Personal Property are made AS-IS,
WHERE-IS, without any warranty of merchantability of suitability for any
particular purpose, all rights waived by Nano.


                              
(ii) Nano shall maintain the Personal Property in its existing condition,
ordinary wear and tear excepted, at its sole cost and expense. Nano shall bear
the entire risk of loss or damage to the Personal Property during the term of
this lease, and Nano shall insure the Personal Property at all times against
risks of loss or damage by fire, theft and such other risks as may be covered
by the insurance generally carried by Nano in respect of its personal property.
All insurance proceeds shall be payable to Nano, and Nano shall pay to Zygo all
insurance proceeds paid to Nano in respect of the Personal Property. Nano may
not remove the Personal Property from the Oregon Facility without the consent
of Zygo. Nano shall not grant any security interest in the Personal Property or
in any other manner assign, pledge, hypothecate, mortgage, lease, sublease,
encumber or otherwise transfer the Personal Property or its interest in the
Personal Property.


                              
(iii) Upon termination of this lease of Personal Property, Nano shall return
the Personal Property to Zygo in the condition in which it was leased to Nano,
ordinary wear and tear excepted.


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          1.6     Payment
for Inventory. 


                    
(a) Nano is purchasing the inventory described in Schedule A-1 (the “Purchased Inventory”)
for $2,014,000, subject to adjustment after Closing pursuant to Section 1.6(c)
hereof (the “Purchased Inventory
Purchase Price”). Nano shall pay for the Purchased Inventory in
the manner described in this Section. Within ten (10) days after the end of the
month in which Nano receives payment on the sale by Nano of each Automated
Interferometer System that includes Purchased Inventory, Nano shall pay to Zygo
an amount equal to the price paid to Nano by Nano’s customer for such entire
system (adding back the dollar amount of any set-offs or other types of
credits, or reductions to the purchase price actually applied, for amounts Nano
may otherwise owe to such customer) but reducing such by the cost of the Head
included in the Automated Interferometer System (which will be paid for in
accordance with the Supply Agreement), to be applied toward the Purchased
Inventory Purchase Price, until the total Purchased Inventory Purchase Price
has been paid in full, and thereafter to the Demo Equipment Purchase Price (as
defined below) until such amount has been paid in full. For example, if Nano
sells an Automated Interferometer System for $1,200,000 that includes any
Purchased Inventory, and the outstanding balance of the Purchased Inventory
Purchase Price exceeds $1,200,000 at the time of such sale, then Nano shall pay
to Zygo the amount of $1,200,000 less the cost of the Head included in such
System (which will be paid for in accordance with the Supply Agreement) within
ten (10) days after the end of the month in which Nano receives payment from
Nano’s customer, and such amount shall be applied toward the outstanding
balance of the Purchased Inventory Purchase Price. 


                    
(b) Nano hereby agrees that, from and after the Closing Date until such time as
the Purchased Inventory Purchase Price and the Demo Equipment Purchase Price
have been paid in full (or, in the case of subsection (b)(v) below, until 30
days following the calendar quarter during which the last of such outstanding
amounts shall have been paid in full):


                              (i)
in the production of any Automated Interferometer System, Nano shall first
utilize the Purchased Inventory prior to utilizing alternatively available
inventory


                              
(ii) Nano shall not use Purchased Inventory for any purpose other than the
production of such systems or in connection with providing warranty service or
other service with respect to Automated Interferometer Systems sold by Zygo or by
Nano;


                              
(iii) Nano shall sell the Automated Interferometer System for cash consideration
(including a check or money order) and shall set pricing based on its standard
practices for ordinary course arms-length third party transactions (“Standard
Prices”); 


                              
(iv) Nano shall make diligent efforts, consistent with its historical practice,
to collect payment for all sales of its Automated Interferometer Systems as to
which all or any portion of such payment shall be paid to Zygo pursuant to the
provisions of Sections 1.6 and/or 1.7 hereof; and 


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(v) No later than 30 days following each calendar quarter, Nano will provide
Zygo with a statement of its sales of Automated Interferometer Systems,
certified by Nano’s Chief Financial Officer. Upon reasonable notice, and at
Zygo’s cost and expense, Nano will permit Zygo and its representatives to audit
Nano’s books and records as they pertain to sales of Automated Interferometer
Systems; provided that if an audit reveals discrepancy of greater than the
lesser of (x) $50,000 or (y) five (5) times aggregate dollar sales, then the
cost and expense of such audit shall be borne by Nano.


                    
(c) No later than fifteen (15) business days after the Closing Date, Zygo shall
perform a physical inventory on the Purchased Inventory in accordance with
generally accepted accounting principles applied consistently with Zygo’s past
practices. Nano, or their respective representatives, shall observe the taking
of the inventory at its sole cost and expense. Disputes between Zygo and Nano
with respect to the merchandise inventory shall be resolved by Zygo and Nano at
the time the physical inventory is being taken. The results of the inventory
shall conclusively be deemed to be the Purchased Inventory for purposes of this
Agreement. As part of this inventory, Zygo shall determine the book value of
the Purchased Inventory as of the Closing Date, in accordance with generally
accepted accounting principles applied consistently with Zygo’s past practices.
The determination of the book value of the Purchased Inventory as of the
Closing Date pursuant to this Section 1.6(c), shall, for all purposes of this
Agreement, be the Purchased Inventory Purchase Price. All work sheets used in
determining the foregoing shall be signed by Zygo and Nano or their respective
representatives.


          1.7
Payment for Demo Equipment. Nano is purchasing the Demo equipment
described in Schedule A-1 (the “Demo Equipment”) for $1,583,224.66, which the
parties hereby agree is the net book value (NBV) thereof as of the Closing Date
(the “Demo Equipment
Purchase Price”). Nano shall pay for such equipment in the
manner described in this Section. After the outstanding balance of the
Purchased Inventory Purchase Price shall have been reduced to zero pursuant to
Section 1.6 of this Agreement, then within ten (10) days after the end of
the month in which Nano receives payment on the sale by Nano of each Automated
Interferometer System, Nano shall pay to Zygo an amount equal to the price paid
to Nano by Nano’s customer for such system, to be applied toward the price of
the Demo Equipment, until the Demo Equipment Purchase Price shall have been
paid in full. For example, if, after the Purchased Inventory Purchase Price
shall have been reduced to zero pursuant to Section 1.6 of this Agreement,
Nano sells an Automated Interferometer System for $1,200,000 and the
outstanding balance of the Demo Equipment Purchase Price exceeds $1,200,000 at
the time of such sale, then Nano shall pay to Zygo the amount of $1,200,000
within ten (10) days after the end of the month in which Nano receives payment
of $1,200,000 from Nano’s customer, and such $1,200,000 shall be applied toward
the outstanding balance of the Demo Equipment Purchase Price.


          1.8
Acceleration. Notwithstanding the provisions of Section 1.6 and 1.7
to the contrary, if, prior to the date on which Nano shall have paid to Zygo in
full the outstanding 


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balance of the
Purchased Inventory Purchase Price and the Demo Equipment Purchase Price, [...*...].


          1.9
Full Payment of Acquired Assets. Notwithstanding the provisions of
Sections 1.6 and 1.7 above or any other provision of this Agreement, full payment
by Nano to Zygo for the Purchased Inventory Purchase Price and Demo Equipment
Purchase Price shall be completed (paid in full) no later than ten (10)
business days after the first anniversary of the Closing.


ARTICLE II


REPRESENTATIONS AND WARRANTIES OF ZYGO


          Zygo
represents and warrants to Nano that the statements contained in this Article
II are true and correct as of the date of this Agreement, except to the extent
such representations and warranties are specifically made as of a particular
date (in which case such representations and warranties will be true and
correct as of such date). 


          The
Disclosure Schedule attached hereto as Exhibit C is arranged in sections and subsections
corresponding to the numbered and lettered sections and subsections contained
in this Article II. The disclosures in any section or subsection of the
Disclosure Schedule will qualify the corresponding section or subsection in
this Article II and any other sections or subsections to which their
applicability is reasonably apparent. For purposes of this Article II, the
phrase “to the knowledge of Zygo” or any phrase of similar import shall be
deemed to refer to the actual knowledge (without independent inquiry or
investigation) of the Key Persons. 


          2.1
Organization, Qualification and Corporate Power. Zygo is a corporation duly organized, validly
existing and in corporate and tax good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to carry
on the Business and to own and use the properties owned and used by it in the
Business. Zygo is qualified to do business and is in corporate and tax good
standing in the state of Oregon. 


          2.2
Authorization of Transaction. Zygo has all requisite
power and authority to execute and deliver this Agreement and the Ancillary
Documents and to perform its obligations hereunder and thereunder. The
execution and delivery by Zygo of this Agreement and the Ancillary Documents,
the performance by Zygo of this Agreement and the Ancillary Documents and the
consummation by Zygo of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate action on the part
of Zygo. Each of this 


	
  

 
	

 


 
	
 * CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN
 THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE
 COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
 AMENDED.

 


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Agreement and the Ancillary Documents has
been duly and validly executed and delivered by Zygo and constitutes a valid
and binding obligation of Zygo, enforceable against Zygo in accordance with its
terms, except as enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws in
effect from time to time affecting creditors’ rights generally, and (b) general
principles of law or equity.


          2.3
Noncontravention. Neither the execution and delivery by Zygo of this Agreement and the
Ancillary Documents, nor the consummation by Zygo of the transactions
contemplated hereby or thereby, will (a) conflict with or violate any provision
of the Certificate of Incorporation or by-laws of Zygo, (b) except for
required filings with the Securities and Exchange Commission, or other public
company filings, require on the part of Zygo any notice to or filing with, or
any permit, authorization, consent or approval of, any Governmental Entity, (c)
conflict with, result in a breach of, constitute (with or without due notice or
lapse of time or both) a default under, result in the acceleration of
obligations under, create in any party the right to terminate, modify or
cancel, or require any notice, consent or waiver under, any contract or
instrument to which Zygo is a party or by which Zygo is bound, or
(d) result in the imposition of any Security Interest upon any Acquired
Assets, except, in all instances of (b), (c) and (d) above, for (i) any
conflict, breach, default, acceleration, termination, modification or cancellation
which would not adversely affect the consummation of the transactions
contemplated hereby or (ii) any notice, consent or waiver the absence of which
would not adversely affect the consummation of the transactions contemplated
hereby.


          2.4
Ownership and Condition of Acquired Assets. 


                    (a)
Zygo is the true and lawful owner, and has good title to, all of the Acquired
Assets, free and clear of all Security Interests. Upon execution and delivery
by Zygo to Nano of the instruments of conveyance referred to above, Nano will
receive the Acquired Assets, free and clear of all Security Interests, except
as provided in Section 1.4(b)(iv) hereof.


                    (b)
Each tangible Acquired Asset listed on Schedule A-1 is free from material
defects, has been maintained in accordance with normal industry practice, is in
good operating condition and repair (subject to normal wear and tear) and is
suitable for the purposes for which it presently is used.


                    (c)
Schedule A-1 lists individually all Acquired Assets which are Demo
Equipment, indicating the cost, accumulated book depreciation (if any) and the
net book value of each such fixed asset as of the Closing Date. 


          2.5
Intellectual Property. None of the Acquired Assets infringes,
misappropriates or otherwise violates any patent, copyright, mask work right,
trademark right, trade dress right, trade secret right, or other intellectual
property right of any Person. The use, sale, export and import of such Acquired
Assets do not infringe or misappropriate any intellectual property
rights of any Person. Zygo makes the representations and warranties in this
Section only as to the


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Acquired
Assets that have not been modified in any way after delivery to Nano hereunder
where the modification causes any claimed infringement.


          2.6
Inventory. All
inventory included in the Acquired Assets consists of a quality and quantity
usable and saleable in the ordinary course of business, except for obsolete
items and items of below standard quality which are identified in Section 2.6
of Exhibit
C. 


          2.7
Contracts. Zygo has delivered to Nano a complete and accurate copy of
each of the Assigned Contracts. With respect to each Assigned Contract: (i) the
agreement is legal, valid, binding and enforceable and in full force and
effect; (ii) subject to obtaining the consent contemplated by Section 4.6
hereof, the agreement is assignable by Zygo to Nano and will continue to be
legal, valid, binding and enforceable and in full force and effect immediately
following the Closing in accordance with the terms thereof as in effect
immediately prior to the Closing; and (iii) neither Zygo nor, to the knowledge
of Zygo, any other party, is in material breach or violation of, or default
under, any such agreement, and no event has occurred, is pending or, to the
knowledge of Zygo, is threatened, which, after the giving of notice, with lapse
of time, or otherwise, would constitute a material breach or default by Zygo
or, to the knowledge of Zygo, any other party under such agreement. 


          2.8
Litigation. There is no Legal Proceeding which is pending or, to Zygo’s
knowledge, has been threatened against Zygo related to the Business or the
Acquired Assets. There are no judgments, orders or decrees outstanding against
Zygo related to the Business or the Acquired Assets.


          2.9
Warranties. No product or service manufactured, sold, leased, licensed
or delivered by Zygo, the obligation of which is being assumed by Nano, in
connection with the Business is subject to any guaranty, warranty, right of
return, right of credit or other indemnity other than (i) the applicable
standard terms and conditions of sale or lease of Zygo, which are set forth in
the Assigned Contracts, and (ii) manufacturers’ warranties for which Zygo
has no liability.


          2.10
Employees. Section 2.10 of Exhibit C contains a list of all
employees (and their status of citizenship) of Zygo whose services relate
primarily to the Business. To the knowledge of Zygo, no employee or group of
employees listed on Schedule 4.4 hereto has informed Zygo that such employee(s)
plan not to accept employment with Nano if so offered by Nano. Zygo is not a
party to or bound by any collective bargaining agreement, and has not experienced
any strikes, grievances, claims of unfair labor practices or other collective
bargaining disputes that relate to the Acquired Assets or the employees of Zygo
listed on Schedule 4.4 hereto. Zygo has no knowledge of any organizational
effort made or threatened, either currently or within the past two years, by or
on behalf of any labor union with respect to the employees of Zygo listed on
Schedule 4.4 hereto.


          2.11
Legal Compliance. Zygo is currently conducting, and has at all times in
the past two years conducted, the Business in compliance with each applicable
law (including rules and 


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regulations
thereunder) of any federal, state, local or foreign government, or any
Governmental Entity, except for any violations or defaults that, individually
or in the aggregate, have not had and would not reasonably be expected to be
materially adverse to the Business as a whole. To Zygo’s knowledge, it has not
received any notice or communication from any Governmental Entity alleging
noncompliance with any applicable law, rule or regulation related to the
Business.


          2.12
Customers and Suppliers. Section 2.12 of Exhibit C sets forth
a list of each supplier that is the sole supplier of any significant product or
service to Zygo related to the Business. Section 2.12 also sets forth a list of
each customer of the Business, and each party with whom Zygo has engaged over
the past twelve months as a prospective customer of the Business, including a
summary description of the status of such engagement. To Zygo’s knowledge, no
such customer or supplier has indicated within the past year that it will stop,
or decrease the rate of, buying products or supplying products, as applicable,
to Zygo. No purchase order or commitment of Zygo which is an Assigned Contract
was in excess of normal requirements at the time entered into.


          2.13
Permits. To Zygo’s knowledge, there are no material permits, licenses, rights, registrations or other
authorizations (collectively, “Permits”) required in connection with Zygo’s conduct of
the Business. Notwithstanding the foregoing, Nano’s sole recourse with respect
to a breach of this representation shall be fulfillment of Zygo’s obligations
under Section 4.12 hereof.


          2.14
Brokers’ Fees. Zygo has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement.


          2.15
Fixed Assets. Section 2.15 of Exhibit C sets forth a list or
description of all fixed assets located in the Oregon Facility that are the
subject of the Sublease Agreement. There are no liens on such fixed assets,
other than customary landlord’s liens.


          2.16
Lease for the Oregon Facility. Attached as Section 2.16 of Exhibit C
is a true and correct copy of Zygo’s lease of the Oregon Facility (the “Lease”). Zygo has
paid all amounts due to date under the Lease and has performed all obligations
of Zygo required to date under the Lease.


ARTICLE III


REPRESENTATIONS AND WARRANTIES OF NANO


          Nano
represents and warrants to Zygo that the statements contained in this Article
III are true and correct as of the date of this Agreement.


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          3.1
Organization and Corporate Power. Nano is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Nano has
all requisite corporate power and authority to carry on the businesses in which
it is engaged and to own and use the properties owned and used by it.


          3.2
Authorization of the Transaction. Nano has all requisite power and authority to
execute and deliver this Agreement and the Ancillary Documents and to perform
its obligations hereunder and thereunder. The execution and delivery by Nano of
this Agreement and the Ancillary Documents and the consummation by Nano of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of Nano. This
Agreement has been duly and validly executed and delivered by Nano and constitutes
a valid and binding obligation of Nano, enforceable against it in accordance
with its terms, except as enforceability may be limited by (a)
applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws in effect from time to time affecting creditors’
rights generally, and (b) general principles of law or equity.


          3.3
Noncontravention. Neither the execution and delivery by Nano of
this Agreement or the Ancillary Documents, nor the consummation by Nano of the
transactions contemplated hereby or thereby, will (a) conflict with or violate
any provision of the Certificate of Incorporation or by-laws of Nano, (b)
except for required filings with the Securities and Exchange Commission, or
other public company filings, require on the part of Nano any filing with, or
permit, authorization, consent or approval of, any Governmental Entity, (c)
conflict with, result in breach of, constitute (with or without due notice or
lapse of time or both) a default under, result in the acceleration of
obligations under, create in any party any right to terminate, modify or
cancel, or require any notice, consent or waiver under, any contract or
instrument to which Nano is a party or by which it is bound or to which any of
its assets is subject, except for (i) any conflict, breach, default,
acceleration, termination, modification or cancellation which would not
adversely affect the consummation of the transactions contemplated hereby or
(ii) any notice, consent or waiver the absence of which would not adversely
affect the consummation of the transactions contemplated hereby, or (d) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
Nano or any of its properties or assets.


          3.4 Use of Technology. In addition to selling the Zygo Unifire
system, Nano is entering into this Agreement and the Supply Agreement with the
current intention of using commercially reasonable efforts to market and
sell all four types of systems enumerated as clauses (a) through (d) in the
definition of “Approved Systems.”


          3.5
Viability. To Nano’s knowledge, it has sufficient resources, financial
and otherwise, to satisfy each of its obligations hereunder and under the
Supply Agreement as each comes due. 


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ARTICLE IV


COVENANTS


          4.1
Proprietary Information. From and after the Closing, neither Party shall disclose or make use of
(except to pursue its rights under this Agreement or the Ancillary Documents),
and each Party shall use its best efforts to cause all of its Affiliates or
other advisors or representatives not to disclose or make use of, any
knowledge, information or documents of a confidential nature or not generally
known to the public with respect to Acquired Assets, the Business or the other Party
or its business (including the financial information, technical information or
data relating to its products and names of its customers), except to the extent
that such knowledge, information or documents shall have become public
knowledge other than through improper disclosure by such Party or an Affiliate
or other advisor or representative thereof. Notwithstanding the foregoing,
nothing in this Agreement shall be construed to prevent Zygo or Nano from
making its required filings with the Securities and Exchange Commission, or
other public company filings, including without limitation any filing requiring
attachment of this Agreement or the Supply Agreement as an exhibit.. Zygo
shall use commercially reasonable efforts to enforce, for the benefit of Nano,
all confidentiality agreements, invention assignments and similar agreements
between such party and any other party relating to the Acquired Assets.


          4.2
Non-Competition.


                    (a)
During the term of the Supply Agreement and for a period of twelve months
thereafter, Zygo shall
not, either directly or indirectly as a stockholder, investor, partner,
consultant or otherwise, market or sell Automated Interferometer Systems in
Approved Markets, or sell Heads or Automated Interferometer Systems to any
other Person with the actual knowledge that such Person will utilize the Heads
in Automated Interferometer Systems in Approved Markets. Zygo shall enforce, for the
benefit of Nano, all non-competition and similar agreements between Zygo and
any other party which are not Assigned Contracts, in all instances only to the
extent such agreements would prevent such third party from marketing or selling
Approved Systems in Approved Markets. Notwithstanding the foregoing or anything
to the contrary in this Agreement, nothing herein shall prevent Zygo from
providing, directly or indirectly, (i) Automated Interferometer Systems in any
markets other than the Approved Markets or (ii) any other products, including
without limitation laboratory systems, semi-automated systems, and stage
metrology systems (such as distance measuring interferometry systems) in any
market. 


                    (b) Zygo agrees
that the duration and geographic scope of the non-competition provisions set
forth in this Section are reasonable. In the event that any court determines
that the duration or the geographic scope, or both, are unreasonable and that
such provision is to that extent unenforceable, the Parties agree that the
provision shall remain in full force and effect for the greatest time period
and in the greatest area that would not render it unenforceable. 


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          4.3
Cooperation in Litigation. From and after the Closing Date, each Party shall fully cooperate with
the others in the defense or prosecution of any litigation or proceeding
already instituted or which may be instituted hereafter against or by such
Party relating to or arising out of the conduct of the Business by Zygo or Nano
prior to or after the Closing Date (other than litigation among the Parties
and/or their Affiliates arising out the transactions contemplated by this
Agreement). The Party requesting such cooperation shall pay the reasonable
out-of-pocket expenses incurred in providing such cooperation (including legal
fees and disbursements) by the Party providing such cooperation and by its
officers, directors, employees and agents, but shall not be responsible for
reimbursing such Parties or their officers, directors, employees and agents,
for their time spent in such cooperation. 


          4.4
Employees. Nano will offer employment as of
the Closing Date to, and hire if such offer is accepted, and Zygo hereby consents to
the hiring by Nano of, those employees listed on Schedule 4.4 hereto. Nano
hereby agrees that it will offer employment to such persons on substantially
similar terms as those provided to such persons by Zygo, which terms Nano
acknowledges have been disclosed in writing by Zygo to Nano prior to the date
of this Agreement. Nano hereby agrees that, from and after the Closing Date, it
will be responsible for any separation, termination or similar costs or other
payments to each employee listed on Schedule 4.4 (the “Obligations”) provided that (a) such employee
accepts employment with Nano and commences work for Nano after the date hereof,
and (b) Nano has offered such rights to the particular employee. Zygo hereby
waives, with respect to the employment by Nano of such employees, any claims or
rights Zygo may have against Nano or any such employee under any
non-competition, confidentiality or employment agreement, to the extent it
relates to the Business.


          4.5
Warranty Claims. Nano shall assume as of the Closing, and become
responsible for, all warranty obligations of Zygo related to any Automated
Interferometer, any Automated Interferometer System or component of any
Automated Interferometer System, in all instances to the extent sold by Zygo
prior to the signing of this Agreement in Nano’s Field of Use. In furtherance
thereof, Nano agrees to perform all such warranty obligations and to maintain
sufficiently qualified personnel in order to satisfy its obligations hereunder.
With respect to each such warranty claim actually made, Zygo shall pay to Nano,
within thirty (30) days after receiving Nano’s invoice, an amount equal to
(a) all direct, actual costs incurred by Nano in responding to such
warranty claim and performing the applicable warranty obligations, plus
(b) 30% of such costs. This clause is not applicable for warranty claims
for heads or components sold by Zygo to Nano after this Agreement is signed.


          4.6
[...*...].


	
  

 
	

 


 
	
 * CERTAIN
 CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS
 FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF
 THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 


- 12
-





          4.7 Automated
Interferometer Systems. Nano shall assume as of the Closing, and become
responsible for, the obligations of Zygo to install and service all Automated
Interferometer Systems shipped or sold by Zygo prior to the Closing Date in
Nano’s Field of Use. With respect to each such installation or service
obligation performed by Nano, Zygo shall pay to Nano, [...*...] an amount equal to [...*...].


          4.8 Assigned
Contracts. Nano shall perform, in accordance with the terms of all Assigned
Contracts, the obligations of Zygo arising thereunder after the Closing.


          4.9 Assumed
Liabilities. Nano shall satisfy all Assumed Liabilities in accordance with
the terms thereof.


          4.10 Oregon
Facility Assets. Zygo shall not at any time remove from the Oregon Facility
any of the equipment, furniture, furnishings, phone system, fixed assets or
supplies located at the Oregon Facility (other than letterhead stationery and
similar supplies that contain Zygo’s name or trademarks). Nano shall not at any
time remove from the Oregon Facility any of the equipment, furniture,
furnishings, phone system, fixed assets or supplies provided by Zygo at the
Oregon Facility.


          4.11 Contracts.
Zygo agrees that, to the extent the Assigned Contracts and the rights obtained
by Nano under this Agreement and the Supply Agreement are insufficient to
conduct the Business from and after the Closing in the manner it was conducted
by Zygo prior to the Closing, then Zygo shall, at Zygo’s expense, use
commercially reasonable efforts to provide Nano with such rights as would be
sufficient to so conduct the Business.


          4.12 Permits.
Zygo agrees that, to the extent any Permits were required but not obtained
prior to the Closing, in connection with Zygo’s conduct of the Business prior
to the Closing, and such failure to hold any such Permit results in any Damages
to Nano, then Zygo shall, at Zygo’s expense, use commercially reasonable
efforts to obtain such Permits.


	
  

 
	

 


 
	
 * CERTAIN
 CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS
 FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF
 THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

 


- 13 -








ARTICLE V


INDEMNIFICATION


          5.1
Indemnification by Zygo. Zygo shall indemnify Nano in respect of, and
hold Nano harmless against, Damages incurred or suffered by Nano or any
Affiliate thereof resulting from, relating to or constituting: 


                    (a) any breach, as of the date of this
Agreement, of any representation or warranty of Zygo contained in this
Agreement, any Ancillary Document or any other agreement or instrument
furnished by Zygo to Nano pursuant to this Agreement, or 


                    (b) any failure to perform any covenant or
agreement of Zygo contained in this Agreement, any Ancillary Document or any
other agreement or instrument furnished by Zygo to Nano pursuant to this
Agreement. 


          5.2 Indemnification
by Nano. Nano shall indemnify Zygo in respect of, and hold it harmless
against, any and all Damages incurred or suffered by Zygo resulting from,
relating to or constituting: 


                    (a)
any breach, as of the date of this Agreement, of any representation or warranty
of Nano contained in this Agreement, any Ancillary Document or any other
agreement or instrument furnished by Nano to Zygo pursuant to this Agreement, 


                    (b)
any failure to perform any covenant or agreement of Nano contained in this
Agreement, any Ancillary Document or any other agreement or instrument
furnished by Nano to Zygo pursuant to this Agreement, 


                    (c)
any failure to perform any obligation assumed by Nano pursuant to the Assigned
Contracts, or 


                    (d)
any Assumed Liability. 


          5.3 Indemnification
Claims


          An
Indemnified Party shall give written notification to the Indemnifying Party of
the commencement of any Third Party Action. Such notification shall be given
within 20 days after receipt by the Indemnified Party of notice of such Third
Party Action, and shall describe in reasonable detail (to the extent known by
the Indemnified Party) the facts constituting the basis for such Third Party
Action and the amount of the claimed damages; provided, however, that no delay
or failure on the part of the Indemnified Party in so notifying the
Indemnifying Party shall relieve the Indemnifying Party of any liability or
obligation hereunder except to the extent of any damage or liability caused by
or arising out of such failure. Within 20 days after delivery of such
notification, the Indemnifying Party may, upon written notice thereof to the
Indemnified Party, 


- 14 -





assume control
of the defense of such Third Party Action with counsel reasonably satisfactory
to the Indemnified Party; provided that the Indemnifying Party may not assume
control of the defense of Third Party Action involving criminal liability or in
which equitable relief is sought against the Indemnified Party. If the
Indemnifying Party does not, or is not permitted under the terms hereof to, so
assume control of the defense of a Third Party Action, the Indemnified Party
shall control such defense. The Non-controlling Party may participate in such
defense at its own expense. The Controlling Party shall keep the
Non-controlling Party advised of the status of such Third Party Action and the
defense thereof and shall consider in good faith recommendations made by the
Non-controlling Party with respect thereto. The Non-controlling Party shall
promptly furnish the Controlling Party with such information as it may have or
receive with respect to such Third Party Action (including copies of any
summons, complaint or other pleading which may have been served on such party and
any written claim, demand, invoice, billing or other document evidencing or
asserting the same) and shall otherwise cooperate with and assist the
Controlling Party in the defense of such Third Party Action. The fees and
expenses of counsel to the Indemnified Party with respect to a Third Party
Action shall be considered Damages for purposes of this Agreement if (x) the
Indemnified Party controls the defense of such Third Party Action pursuant to
the terms of this Section 5.3 or (y) the Indemnifying Party assumes control of
such defense and the Indemnified Party reasonably concludes that the
Indemnifying Party and the Indemnified Party have conflicting interests with
respect to such Third Party Action. The Indemnifying Party shall not agree to
any settlement of, or the entry of any judgment arising from, any Third Party
Action without the prior written consent of the Indemnified Party, which shall
not be unreasonably withheld, conditioned or delayed. The Indemnified Party
shall not agree to any settlement of, or the entry of any judgment arising
from, any such Third Party Action without the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld, conditioned or
delayed. 


          5.4
Arbitration. 


                    (a)
Any controversy, dispute or claim arising under or in connection with this
Agreement (including, without limitation, the existence, validity,
interpretation or breach hereof and any claim based on contract, tort of
statute) shall be resolved by a binding arbitration, to be held in Portland,
Oregon (or its nearest surrounding area) pursuant to the Federal Arbitration
Act and in accordance with the then-prevailing International Arbitration Rules
of the AAA. 


                    (b)
The parties shall commence the arbitration by jointly filing a written
submission with the Portland, Oregon (or its nearest surrounding area) office
of the AAA in accordance with Commercial Rule 5 (or any successor provision). 


                    (c)
The Arbitrator shall have no power or authority, under the Commercial Rules or
otherwise, to (i) modify or disregard any provision of this Agreement or any
Ancillary Document, or (ii) address or resolve any issue not submitted by the
parties. 


                    (d)
In connection with any arbitration proceeding pursuant to this Agreement, each
party shall bear its own costs and expenses, except that the fees and costs of
the AAA and


- 15 -





the
Arbitrator, the costs and expenses of obtaining the facility where the
arbitration hearing is held, and such other costs and expenses as the
Arbitrator may determine to be directly related to the conduct of the
arbitration and appropriately borne jointly by the parties (which shall not
include any party’s attorneys’ fees or costs, witness fees (if any), costs of
investigation and similar expenses) shall be shared equally by the Indemnified
Party and the Indemnifying Party. 


          5.5
Survival of Representations and Warranties. All representations and
warranties that are covered by the indemnification agreements in Section 5.1(a)
and Section 5.2(a) shall (a) survive the Closing and (b) shall expire on the
date 18 months following the Closing Date, except that the representations and
warranties set forth in Sections 2.1, 2.2, 3.1 and 3.2 shall survive the
Closing. If an Indemnified Party delivers to an Indemnifying Party, before
expiration of a representation or warranty, either a Claim Notice based upon a
breach of such representation or warranty, or an Expected Claim Notice based
upon a breach of such representation or warranty, then the applicable
representation or warranty shall survive until, but only for purposes of, the
resolution of the matter covered by such notice. If the legal proceeding or
written claim with respect to which an Expected Claim Notice has been given is
definitively withdrawn or resolved in favor of the Indemnified Party, the
Indemnified Party shall promptly so notify the Indemnifying Party. The rights
to indemnification set forth in this Article V shall not be affected by (x) any
investigation conducted by or on behalf of an Indemnified Party or any
knowledge acquired (or capable of being acquired) by an Indemnified Party,
whether before or after the Closing Date, with respect to the inaccuracy or
noncompliance with any representation, warranty, covenant or obligation which
is the subject of indemnification hereunder or (y) any waiver by an Indemnified
Party of any closing condition relating to the accuracy of any representations
and warranties or the performance of or compliance with agreements and
covenants. 


          5.6
Limitations. Notwithstanding anything to the contrary herein, Zygo shall
not be liable under this Article V unless and until the aggregate Damages for
which it would otherwise be liable under this Article V exceed [...*...]. Thereafter Zygo will be
responsible for such excess Damages in an amount not to exceed [...*...]. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall Zygo be liable for any
consequential, indirect, punitive, individual or special damages of any nature,
or any damage or claim for lost profits. 


          5.7
Treatment of Indemnity Payments. Any payments made to an Indemnified
Party pursuant to this Article V shall be treated as an adjustment to the
consideration paid hereunder for tax purposes. 


	
  

 	
  

 
	

 


 	
  

 
	
 * CERTAIN CONFIDENTIAL
 INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE
 SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
 EXCHANGE ACT OF 1934, AS AMENDED. 

 


- 16 -





ARTICLE VI


DEFINITIONS


          For
purposes of this Agreement, each of the following terms shall have the meaning
set forth below. 


          “AAA”
shall mean the American Arbitration Association. 


          “Acquired
Assets” shall mean the assets of Zygo set forth on Schedule A-1 hereto. 


          “Affiliate”
means, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person, and the term “control” (including
the terms “controlled by” and “under common control with”) means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through owners
of voting securities, by contract or otherwise. 


          “Ancillary
Documents” shall mean the Supply Agreement, that certain Confidentiality
Agreement dated as of February 23, 2009 by and between the Parties, the Bill of
Sale, the Assumption Agreement, the Sublease Agreement and the documents
executed and delivered by the Parties pursuant to Section 1.4(c). 


          “Approved
Markets” means the following markets in which Nano will have the exclusive
right to market and sell Approved Systems, but limited to Nano’s Field of Use
(defined below): (a) manufacturing and testing of semiconductors, including but
not limited to [...*...]
(b) manufacturing and testing of [...*...]
(c) manufacturing and testing of [...*...]
and (d) manufacturing and testing of [...*...].



          “Approved
Systems” means the following types of systems that Nano will have exclusive
rights to market and sell in Approved Markets pursuant to the terms of this
Agreement and the Supply Agreement: (a) an Automated Interferometer System
referred to as the “Unifier” that has been designed, marketed and sold by Zygo
[...*...]. 


          “Arbitrator”
shall mean a single arbitrator selected by Nano and Zygo in accordance with the
Commercial Rules. 


          “Assigned
Contracts” shall mean those contracts set forth on Schedule A-2 hereto. 


          “Assumed
Liabilities” shall mean those liabilities set forth on Schedule B hereto and all obligations
of Zygo arising after the Closing under the Assigned Contracts. 


	
  

 	
  

 
	

 


 	
  

 
	
 * CERTAIN CONFIDENTIAL
 INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE
 SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
 EXCHANGE ACT OF 1934, AS AMENDED. 

 


- 17 -





          “Automated
Interferometer System” means an interferometer system including
fully-automated wafer handling equipment sufficient to enable in-line operation
in the Approved Markets for Nano’s Field of Use, and specifically excluding
laboratory tool interferometer systems and semi-automated interferometer
systems (such as those with motorized stages). “Automated Interferometer
Systems” can be a stand-alone metrology unit or it can be incorporated into
another unit, such as a production unit to, for example, provide real-time
metrology feedback during production of a device. 


          “Business”
shall mean the marketing and sale of Approved Systems in Approved Markets. 


          “Buyer”
shall have the meaning set forth in the first paragraph of this Agreement. 


          “Claim
Notice” shall mean written notification which contains (a) a description of
the Damages incurred or reasonably expected to be incurred by the Indemnified
Party and the Claimed Amount of such Damages, to the extent then known, (b) a
statement that the Indemnified Party is entitled to indemnification under
Article V for such Damages and a reasonable explanation of the basis therefor,
and (c) a demand for payment in the amount of such Damages. 


          “Claimed
Amount” shall mean the amount of any Damages incurred or reasonably
expected to be incurred by the Indemnified Party. 


          “Closing”
shall mean the closing of the transactions contemplated by this Agreement.



          “Closing Date” shall mean the date
of this Agreement.


          “Commercial Rules” shall
mean the Commercial Arbitration Rules of the AAA. 


          “Controlling
Party” shall mean the party controlling the defense of any Third Party
Action. 


          
“Damages” shall mean any and all debts, obligations and other
liabilities (whether absolute, accrued, contingent, fixed or otherwise, or
whether known or unknown, or due or to become due or otherwise), diminution in
value, monetary damages, fines, fees, penalties, interest obligations,
deficiencies, losses and expenses (including amounts paid in settlement,
interest, court costs, costs of investigators, fees and expenses of attorneys,
accountants, financial advisors and other experts, and other expenses of
litigation), in all instances actually and directly incurred, and other than
those costs and expenses of arbitration of a Dispute which are to be shared
equally by the Indemnified Party and the Indemnifying Party. 


          “Disclosure
Schedule” shall mean the disclosure schedule provided by Zygo to Nano and
attached hereto. 


- 18 -





          “Dispute”
shall mean the dispute resulting if the Indemnifying Party in a Response
disputes its liability for all or part of the Claimed Amount. 


          “Documentation”
shall mean printed, visual or electronic materials, reports, white papers,
documentation, specifications, designs, flow charts, code listings,
instructions, user manuals, frequently asked questions, release notes, recall
notices, error logs, diagnostic reports, marketing materials, packaging,
labeling, service manuals and other information describing the use, operation,
installation, configuration, features, functionality, pricing, marketing or
correction of a product, whether or not provided to end user. 


          “Expected
Claim Notice” shall mean a notice that, as a result of a legal proceeding
instituted by or written claim made by a third party, an Indemnified Party
reasonably expects to incur Damages for which it is entitled to indemnification
under Article V. 


          “Exploit”
shall mean develop, design, test, modify, make, use, sell, have made, used and
sold, import, reproduce, market, distribute, commercialize, support, maintain,
correct and create derivative works of. 


          “GAAP”
shall mean United States generally accepted accounting principles. 


          “Governmental
Entity” means any government or governmental or regulatory entity or body
thereof, or political subdivision thereof, whether Federal, state, local or
foreign, or any commission, agency, instrumentality or authority thereof, or
any court, tribunal or arbitrator (public or private). 


          “Heads”
means the heads for interferometers made by or for Zygo as described in Exhibit
A to the Supply Agreement as well as any heads hereafter made by or for Zygo
that include modifications or improvements but are generally the same as, or a
successor of, such heads described in Exhibit A to the Supply Agreement. 


          “Indemnified
Party” shall mean a party entitled, or seeking to assert rights, to
indemnification under Article V of this Agreement. 


          “Indemnifying
Party” shall mean the party from whom indemnification is sought by the
Indemnified Party. 


          “Key
Person” shall mean Zygo’s chief executive officer, divisional president,
chief financial officer, senior vice president of technology, and vice
president of semiconductor solutions. 


          “Legal
Proceeding” shall mean any action, suit, proceeding, claim, arbitration or
investigation before any Governmental Entity or before any arbitrator. 


- 19 -





          “Nano’s
Field of Use” means in-line, fully–automated wafer handling equipment, as opposed
to laboratory tools or semi-automated systems (such as those with motorized
stages). 


          “Non-controlling
Party” shall mean the party not controlling the defense of any Third Party
Action. 


          “Ordinary
Course of Business” shall mean the ordinary course of business consistent
with past custom and practice (including with respect to frequency and amount).



          “Parties”
shall mean Nano and Zygo. 


          “Person”
means any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization,
Governmental Entity. 


          “Requisite
Approvals” shall mean the approval of the sale of the Acquired Assets by
Zygo to Nano as contemplated by this Agreement by the directors of Zygo. 


          “Retained
Liabilities” shall mean any and all liabilities or obligations (whether
known or unknown, absolute or contingent, liquidated or unliquidated, due or to
become due and accrued or unaccrued, and whether claims with respect thereto are
asserted before or after the Closing) of Zygo that are not Assumed Liabilities.



          “Security
Interest” shall mean any mortgage, pledge, security interest, encumbrance,
charge or other lien (whether arising by contract or by operation of law), other
than (a) mechanic’s, materialmen’s, and similar liens, (b) liens arising under
worker’s compensation, unemployment insurance, social security, retirement, and
similar legislation and (c) liens on goods in transit incurred pursuant to
documentary letters of credit, in each case arising in the Ordinary Course of
Business of Zygo and not material to Zygo. 


          “Software”
shall mean computer software code, applications, utilities, development tools,
diagnostics, databases and embedded systems, whether in source code,
interpreted code or object code form. 


          “Third
Party Action” shall mean any suit or proceeding by a person or entity other
than a Party for which indemnification may be sought by a Party under Article
V. 


ARTICLE VII


MISCELLANEOUS


          7.1
Press Releases and Announcements. Neither Party shall issue any press
release or public announcement relating to the subject matter of this Agreement
without the prior written approval of the other Party; provided, however, that
either Party may make any public disclosure it believes in good faith is
required by applicable law, regulation or stock market rules (in which 


- 20 -





case the
disclosing Party shall use reasonable efforts to advise the other Party and
provide it with a copy of the proposed disclosure prior to making the
disclosure). 


          7.2
No Third Party Beneficiaries. This Agreement shall not confer any rights
or remedies upon any person other than the Parties and their respective
successors and permitted assigns. 


          7.3
Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, with respect to the subject matter hereof; provided that the
Confidentiality Agreement dated February 23, 2009 between Nano and Zygo shall
remain in effect in accordance with its terms. 


          7.4
Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. Neither Party may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other Party. Any attempted assignment in
contravention of this provision shall be void. 


          7.5
Counterparts and Facsimile Signature. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. This Agreement may
be executed by facsimile signature. 


          7.6
Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement. 


          7.7
Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered four
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent for next
business day delivery via a reputable nationwide overnight courier service, in each
case to the intended recipient as set forth below: 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 If to Zygo:

 	
  

 	
 Copy to:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Zygo
 Corporation

 	
  

 	
 Fulbright
 & Jaworski L.L.P.

 
	
  

 	
 Laurel Brook
 Road

 	
  

 	
 666 Fifth
 Avenue

 
	
  

 	
 Middlefield,
 CT 06455-0448

 	
  

 	
 New York, NY
 10103

 
	
  

 	
 Attn: Chief
 Executive Officer

 	
  

 	
 Attn:
 Sheldon Nussbaum

 
	
  

 	
 Tel:
 860-704-5109

 	
  

 	
 Tel: (212)
 318-3000

 


- 21 -









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Fax:
 860-347-8372

 	
  

 	
 Fax: (212)
 318-3400

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 If to Nano:

 	
  

 	
 Copy to:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Nanometrics
 Incorporated

 	
  

 	
 Perkins Coie
 LLP

 
	
  

 	
 1550 Buckeye
 Drive

 	
  

 	
 101
 Jefferson Drive

 
	
  

 	
 Milpitas, CA
 95035

 	
  

 	
 Menlo Park,
 CA 94025

 
	
  

 	
 Attn: Chief
 Executive Officer

 	
  

 	
 Attn: Buddy
 Arnheim

 
	
  

 	
 Tel: (408)
 545-6000

 	
  

 	
 Tel: (650)
 838-4300

 
	
  

 	
 Fax: (408)
 904-6278

 	
  

 	
 Fax: (650)
 838-4350

 



          Either
Party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until it actually is received by
the party for whom it is intended. Either Party may change the address to which
notices, requests, demands, claims, and other communications hereunder are to
be delivered by giving the other Party notice in the manner herein set forth. 


          7.8
Governing Law. This Agreement (including the validity and applicability
of the arbitration provisions of this Agreement, the conduct of any arbitration
of a Dispute, the enforcement of any arbitral award made hereunder and any
other questions of arbitration law or procedure arising hereunder) shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule (whether of the State of Delaware or of any other jurisdiction) that would
cause the application of laws of any jurisdiction other than the State of
Delaware. 


          7.9
Amendments and Waivers. The Parties may mutually amend any provision of
this Agreement at any time prior to the Closing. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by each of the Parties. No waiver by either Party of any right or remedy
hereunder shall be valid unless the same shall be in writing and signed by the
Party giving such waiver. No waiver by either Party with respect to any
default, misrepresentation, or breach of warranty or covenant hereunder shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence. 


          7.10
Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to limit the term or provision,
to delete specific words or phrases, or to replace any


- 22 -





invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
or unenforceable term or provision, and this Agreement shall be enforceable as
so modified. 


          7.11
Expenses. Each Party shall bear its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby. 


          7.12
Service of Process. Each party agrees to accept service of any summons,
complaint or other initial pleading made in the manner provided for the giving
of notices in Section 7.7, provided that nothing in this Section 7.12 shall affect
the right of either Party to serve such summons, complaint or other initial
pleading in any other manner permitted by law. 


          7.13
Specific Performance. Each Party acknowledges and agrees that the other
Party would be damaged irreparably in the event any of the provisions of this
Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each Party agrees that the other Party
shall be entitled to an injunction or other equitable relief to prevent breaches
of the provisions of this Agreement and to enforce specifically this Agreement
and the terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having jurisdiction over the Parties and
the matter, in addition to any other remedy to which it may be entitled, at law
or in equity. 


          7.14
Construction. 


                    (a)
The language used in this Agreement shall be deemed to be the language chosen
by the Parties to express their mutual intent, and no rule of strict
construction shall be applied against either Party. 


                    (b)
Any reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. 


                    (c)
Any reference herein to “including” shall be interpreted as “including without
limitation.” 


                    (d)
Any reference to any Article, Section or paragraph shall be deemed to refer to an
Article, Section or paragraph of this Agreement, unless the context clearly
indicates otherwise. 


          7.15
Cross Default. A breach by either party under the Supply Agreement shall
be deemed to constitute a breach by that party under this Agreement. 


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- 24 -





          IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written. 


	
  

 	
  

 	
  

 	
  

 
	
  

 	
 NANOMETRICS
 INCORPORATED

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  /s/ Timothy
 J. Stultz, Ph.D.

 
	
  

 	
  

 	

 


 	

 


 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Title:

 	
 President
 and Chief Executive Officer

 
	
  

 	
  

 	

 


 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ZYGO
 CORPORATION

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By: 

 	
  /s/ J. Bruce
 Robinson

 
	
  

 	
  

 	

 


 	

 


 
	
  

 	
 Title:

 	
 Chief
 Executive Officer

 
	
  

 	
  

 	

 


 










EXHIBIT
A


EXECUTION COPY 


BILL OF SALE AND ASSIGNMENT


          THIS
BILL OF SALE AND ASSIGNMENT is made and entered into as of June 17, 2009, by
and among Zygo Corporation, a Delaware corporation (“Zygo”); and Nanometrics
Incorporated, a Delaware corporation (“Nano”). 


WITNESSETH:


          WHEREAS,
Zygo and Nano have entered into that certain Asset Transfer Agreement dated
June 17, 2009 (the “Asset Transfer Agreement”), pursuant to which Zygo has
agreed to convey, and Nano has agreed to acquire, the Acquired Assets (as such
term is defined in the Asset Transfer Agreement) and all of Zygo’s rights and
obligations under the Assigned Contracts (as such term is defined in the Asset
Transfer Agreement), for the consideration therein provided. 


          NOW,
THEREFORE, in consideration of the foregoing and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Zygo and Nano hereby agree as follows: 


          1.
Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Asset Transfer Agreement. 


          2.
Sale of Assets; Assignment of Contract. Zygo hereby sells, transfers,
conveys, assigns and delivers to Nano at the Closing, for the consideration specified
in Section 1.3 of the Asset Transfer Agreement, (a) all right, title and
interest in, to and under the Acquired Assets, and (b) subject to Section 4.6
of the Asset Transfer Agreement, all its rights and obligations under the
contract listed on Schedule A-2 to the Asset Transfer Agreement (the “Assigned
Contract”). 


          3.
Acceptance. Nano hereby accepts (a) the sale, transfer, conveyance and
assignment to Nano of valid ownership of the Acquired Assets and (b) subject to
Section 4.6 of the Asset Transfer Agreement, all of Zygo’s rights and
obligations under the Assigned Contract. 


          4.
Miscellaneous. 


                  (a)
All of the representations, warranties, covenants and agreements contained in
the Asset Transfer Agreement with respect to the Assets being sold, conveyed,
assigned, transferred and delivered hereby shall survive the delivery of this
Bill of Sale and Assignment and the Closing of the transactions referred to in
the Asset Transfer Agreement to the extent set forth in the Asset Transfer
Agreement. 


                  (b)
This instrument is being delivered pursuant to Section 1.4(b)(i) of the Asset
Transfer Agreement and shall be construed consistent therewith. This instrument
is not intended to,





and does not,
in any manner enlarge, diminish or modify the rights and obligations of the
parties to the Asset Transfer Agreement. 


                  (c)
This instrument shall be governed by and construed in accordance with the laws
of the State of Delaware. 


          5.
Counterparts. This Bill of Sale and Assignment may be executed in any
number of counterparts and any party hereto may execute any such counterpart,
each of which when executed and delivered shall be deemed to be an original and
all of which counterparts taken together shall constitute but one and the same
instrument. This Bill of Sale and Assignment shall become binding when
one or more counterparts taken together shall have been executed and delivered
by the parties. It shall not be necessary in making proof of this Bill of Sale
and Assignment or any
counterpart hereof to produce or account for any of the other counterparts. 





          IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed and delivered as of the day and year first above written. 


	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 NANOMETRICS
 INCORPORATED

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ZYGO
 CORPORATION

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 










EXHIBIT B


EXECUTION COPY


ASSIGNMENT AND ASSUMPTION AGREEMENT


This
Assignment and Assumption Agreement (this “Assignment and Assumption
Agreement”) is made and entered into is made and entered into as of June 17,
2009, by and among Zygo Corporation, a Delaware corporation (“Assignor”); and
Nanometrics Incorporated, a Delaware corporation (“Assignee”).


WHEREAS,
Assignor and Assignee are parties to that certain Asset Transfer Agreement
dated as of June 17, 2009 (the “Purchase Agreement”), pursuant to which Assignee
has purchased substantially all of the assets of Assignor; and


WHEREAS,
pursuant to the Purchase Agreement, Assignor has agreed to assign certain
rights and agreements to Assignee, and Assignee has agreed to assume certain
obligations of Assignor, as set forth herein, and this Assignment and
Assumption Agreement is contemplated by Section 1.4(b)(iv) of the Purchase
Agreement.


NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and legal sufficiency of which are hereby acknowledged, the parties do
hereby agree as follows:


1. Capitalized
Terms. Capitalized terms used but not defined herein shall have the
meanings for such terms that are set forth in the Purchase Agreement.


2. Assignment
and Assumption. Effective as of 1:00 p.m. New York time on the date hereof
(the “Effective Time”), Assignor hereby assigns, sells, transfers and sets over
(collectively, the “Assignment”) to Assignee the Assumed Liabilities, as
contemplated pursuant to Section 1.2 of the Purchase Agreement. Assignee hereby
accepts the Assignment and assumes and agrees to observe and perform all of the
duties, obligations, terms, provisions and covenants, and to pay and discharge
all of the liabilities of Assignor to be observed, performed, paid or
discharged from and after the Closing, in connection with the Assumed
Liabilities.


3. Further
Actions. Each of the parties hereto covenants and agrees, at its own
expense, to execute and deliver, at the request of the other party hereto, such
further instruments of transfer and assignment and to take such other action as
such other party may reasonably request to more effectively consummate the
assignments and assumptions contemplated by this Assignment and Assumption
Agreement.


4. Expenses. Each party hereto shall
pay its own expenses incidental to the preparation of this Assignment
and Assumption Agreement and the carrying out of the provisions of this Assignment and
Assumption Agreement.





5. Miscellaneous. 


          (a)
All of the representations, warranties, covenants and agreements contained in
the Asset Transfer Agreement with respect to the Assets being sold, conveyed,
assigned, transferred and delivered hereby shall survive the delivery of this
Assignment and Assumption Agreement and the Closing of the transactions
referred to in the Asset Transfer Agreement to the extent set forth in the
Asset Transfer Agreement.


          (b)
This instrument is being delivered pursuant to Section 1.4(b)(iv) of the Asset
Transfer Agreement and shall be construed consistent therewith. This instrument
is not intended to, and does not, in any manner enlarge, diminish or modify the
rights and obligations of the parties to the Asset Transfer Agreement. 


          (c)
This instrument shall be governed by and construed in accordance with the laws
of the State of Delaware.


6. Counterparts. This Assignment
and Assumption Agreement may
be executed in any number of counterparts and any party hereto may execute any
such counterpart, each of which when executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute
but one and the same instrument. This Assignment and Assumption
Agreement shall become binding
when one or more counterparts taken together shall have been executed and
delivered by the parties. It shall not be necessary in making proof of this Assignment
and Assumption Agreement or
any counterpart hereof to produce or account for any of the other counterparts.





IN WITNESS
WHEREOF, the parties have executed this Assignment and Assumption Agreement as
of the date first above written.





	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 NANOMETRICS
 INCORPORATED

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 ZYGO
 CORPORATION

 	
  

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 
	
  

 	
 Title:

 	
  

 	
  

 
	
  

 	
  

 	

 


 	
  

 









EXHIBIT C


[...*...]


	
  

 	
  

 
	

 


 	
  

 
	
 *   CERTAIN CONFIDENTIAL
 INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE
 SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES
 EXCHANGE ACT OF 1934, AS AMENDED.

 









EXHIBIT D


[Supply Agreement]